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156 Cards in this Set

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What are the titles of the freehold estates?
Fee simple
life estate
fee tail
What must Fee Simple Absolute be? It's the most important distinction
Fully alienable
How do you treat any attempts to put a direct restraint on alienation of a Fee Simple Absolute interest?
ignore the restriction
May conditions be imposed on the excercise of fee simple?
Yes, so long as they don't limit right to transfer
What is the right of first refusal?

Is it permissible?
Where O wills the land to A but provides that if B tries to sell land during her lifetime, then B has the OPTION TO BUY THE LAND BEFORE A CAN SELL IT TO ANYONE ELSE.

It's permissible.
How to interpret "Farm to A" under common law? Under Majority?
Common law: A gets Life Estate

Majority: A gets fee simple (b/c presumption of fee siple)
What is this?

"To A and the heirs of his body" or "To A and his bodily heirs"

Common law?
Modern trend?
Common Law: Fee Tail

locks property into grantee's family

Modern presumption: FSA
Can a life estate be implied?

What's an example?
Yes

"To A and B after the death of my beloved wife C"
What is the majority statutory change and modern rule where...

life tenant dies b/f the measuring life dies? (they're 2 different people)
life estate passes to the estate of the deceased life tenant and continues in place until the measuring life dies
Where life estate transferred from original life tenant / measuring life (A) to another (B) and B dies, who gets the life estate?
B's estate and continues as such until A dies.
Can a life estate place restrictions on alienation?
Yes
What is voluntary waste?
any affirmative action beyond the right of maintenance that causes harm to the premises!
What is the obligation of a life tenant in order to avoid waste?
to MAINTAIN the estate

maintain means life tenant may continue the NORMAL USE of the land
To whom is the life tenant liable for for voluntary waste?
holder of future interest
Is sale of harvestable crops by life tenant waste?
No.
What is Permissive waste?
Failure of life tenant to maintain
What three things must a tenant do in order to avoid liability for permissive waste?
1. make ordinary REPAIRS
2. pay all TAXES on property
3. pay INTEREST on MORTGAGE DEBT, but not principle.
What is the limit of a life tenant's obligation to make repairs, pay taxes and pay mortgages?
limited to the amount of rents and profits received from the land

OR

if no rents or profits, then limited to the reasonable rental value of the land IF the LT is using the land

OR

if no income from land and not using the land, then no obligation to pay for anything
Does a tax sale eliminate a future interest in land currently under a life estate?
yes
What is ameliorative waste?
life tenant alters the property substantially but life tenant's activity increases the value of the land
When can the life tenant alter the property without incurring liabilty to the holder of the future interest?
if CHANGED CONDITIONS have made the property RELATIVELY WORTHLESS
To what type of estates does seisin apply?

What is seisin?
All freehold estates.

the holder of seisin is the taxpayer.
What type of a future interest is created whenever the Grantor conveys away less than the full durational estate that the Grantor had?
A reversion in the grantor
What type of an estate?

O conveys Blackacre to A and his heirs for so long as no liquor is consumed on the premises.
possibility of revert in the grantor

Fee Simple Determinable
What is a fee simple determinable?
an estate in fee simple that terminates (goes back to the grantor) (will DETERMINE) automatically on the occurrence of some event
These words suggest what type of an estate?
"so long as"
"while"
"during"
"until"
Fee simple determinable
When does grantor automatically retain a possibility of reverter?
whenever the grantor conveys a Fee Simple Determinable.
Whenever a grantor conveys a fee simple on condition subsequent, grantor keeps ________
right of re-entry
These words (below) followed by language where Grantor expressly reserves the right to re-enter and retake property, creates what?

"provided however"
"but if"
"on condition that"
Fee Simple Condition Subsequent
For fee simple on condition subsequent, does title go back to grantor automatically when condition is broken?
No, grantor must do something to retake the property
Are all future interests in the Grantor vested?

Are they subject to rule against perpetuities?
Yes.

No.
Can Grantor freely transfer intervivos a right of re-entry?
No.
How do you spot a remainder?
remainder in future interest in a third party grantee comes NATURALLY AND IMMEDIATELY on termination of preceeding estate
What are the 2 types of remainders?
VESTED

and

CONTINGENT
When is a remainder vested?
when the taker is ascertainable and there are no conditions to the taking
When a remainder contingent?
When there is a condition that that REMAINDERMAN MUST SATISFY before his interest in the land becomes possessory
When is a vested remainder "subject to open"
When the remainder interest is conveyed to a class of unnamed persons whose members are not yet fully konwn
When does a class close?

What's it called?

Is this a rule of law?
the class closes for a class gift whenever any class member is entitled to a distribution.

A rule of convenience.

No, it is a rule of construction
What is the primary distinction b/w remainders and executory interests?
Remainders NEVER affect the estate that comes before them.

Executory Interest do - they cut short the preceding estate
What interests do A and B have?

O conveys blackacre to A so long as the property is used for residential purposes; and if the property is ever used for else, then to B and his heirs.
A: Fee simple subject to an executory interest

B: executory interest
Do executory interests have standing to sue for waste?

How about remaindermen?
No

Yes
If a future interest in a grantee is not a remainder, then it MUST be ____.
an executory interest!
Rule against perpetuties says, "No interest will be valid...
unless it MUST vest - if it is going to vest at all - within 21 years after the death of some life being who was alive at the moment the conveyance was made."
Rule Against Perpetutities always applies to ___ interests and ___ remainders and __ remainders ___.
executory

contingent

vested / subject to open
What is the test for whether Rule Against Perpetuties applies?
could this future interest possibly vest in the Grantee outside of 21 years after everyone alive at the time grantor dies?
What to do if a conveyance violates RAP?
cross out the language of the conveyance that violates the rule and apply the remaining conveyance
When to apply RAP when transfer is made by will? by deed?
At the time the instrument takes effect.

For will, at the time of the testator's death

For deed, at time it takes effect
Can contingent interests in property (options and rights of first refusal) viaolte the RAP?
Yes, if they possibly could be exercised outside the time period of the rule
What is the primary RAP exception?
Charity to Charity
Requirements for Joint Tenancy
TTIP

1. unity of Time - interests vest at same time
2. unity of Title - grant to joint tenants contained in same INSTRUMENT
3. unity of Interest - Same KIND and AMOUNT
4. unity of Possession
What language is required for joint tenancy?
"joint tenants" and "with right of survivorship"
What type of estate is presumed if intent to create joint tenancy is unclear?
tenants in common
How do joint tenants get out of the joint tenancy?

What happens if can't do it voluntarily?
1. By partition: lines are drawn and party seeknig a partitioning is no longer a joint tenant

If can't be solved through voluntary agreement b/w parties, then party can seek a judicial action to create a partition.
What is severence of joint tenancy?

When does it occur?

What are the ways in which it occurs?
= involuntary termination of joint tenancy

When any of the four unities are disturbed.

1. sale
2. mortgage
3. contract of sale
4. creditors sale
For joint tenancy, what is the majority and minority rule for when a joint tenant mortgages his interest of the estate?
Majority: Lien Theory
- there is NO severance of the joint tenancy (b/c title not transferred)
- unity NOT disturbed

Minority: Title Theory
- there IS a severance of joint tenancy (b/c title passes to bank b/f mortgage is satisfed)
- unity IS disturbed
For contract of sale of an estae of joint tenancy, when does the severance occur?
When the K of sale was signed.
1. Where there is a creditor's sale of the interest in a joint tenancy, when does the severance occur?

2. What happens if the joint tenant dies b/f the creditor's sale?
1. When the sale takes place.

2. Since there is no severance yet, title passes to the surviving joint tenants and the creditor can't get at the property.
What unity(ies) is/are required for tenancy in common?

What does this mean?
just one, possession

the tenant in common can possess the whole property
Is a tenancy in common freely alienable?

Where does the estate go by default when on tenant in common dies?
Yes

to the person's estate
How to terminate a tenancy in common?
1. death
2. MUTUAL agreement in writing (cannot be unilateral)
3. divorce
4. execution by a JOINT creditor
What is a grant of a concurrent estate to a husband and wife?
Tenancy by the entirety, so long as the 4 unities are present.
Must a co-tenant account to another co-tenant for his share of the profits from the land?
Normally no.

Exceptions
1. Ouster (one cotenant is either keeping a co-tenant off the property OR claiming a right of exclusive possession)
2. Agreement to accountability
3. lease of property by a co-tenant to a third party
4. depletion of natural resources
What are the rights of contribution for incidents of co-ownership (co-tenants)for...

1. improvements?
2. repairs?
3. paying the mortgage?
4. paying taxes?
1. No, but may be recoupsed later at the time of sale
2. Yes, but only for necessary repairs
3. Yes, if the mortgage has been co-signed by all co-tenants
4. Yes, as well as for gov.'t imposed obligations
What type of an estate is it where the time is specified (normally notes fixed beginning date and fixed end date)?
Estate for years / tenancy for years
Is there a notice requirement for termination of estate for years?
No.
What type of a tenancy is it where the estate is repeating until one party gives notice?
Periodic Tenancy
Where lease does not specify how long tenacy is to last, what is presumed?
The estate is a periodic tenancy, measured by the rent payment (month-to-month periodic tenancy arises if the rent is to be paid monthly).
Where an oral lease satisfies the statue of frauds b/c the time period is greater than one year, what type of an estate arises?

How?

What determines the period of tenancy?
periodic tenancy, so long as LL accepts rent check

How: by operation of law

period covered by rent check LL accepted determines period of tenancy
What happens where a LL accepts a rent check from a holdover tenant?
a periodic tenancy is created by operation of law for the period specified in the rent check
what is required to terminate a periodic a tenancy?
1. enough time: an amount of time equal to the length of the period of tenancy, EXCEPT in year-to-year tenancy, which requires 6 month notice

2. Effective date: effective date specified in the notice must be at the end of the period of the tenancy
Methods of termination of tenancy at will (6)
1. Voluntary: by either party at any time

By operation of law
1. death of either party
2. waste by the tenant
3. assignment by tenant
4. transfer of title by LL
5. lease by LL to 3rd party
What can a LL do to a tenant that never leaves?
1. sue to evict, in trespas to recover damages for the holdover
2. impose new periodic tenancy
-cannot impose new periodic tenancy if it is not unreasonable under the circs
Where a tenant enters an express covenant to repair and maintain, is tenant responsible for ordinary wear and tear?
At Common Law: No

At Modern Majority: Yes
What LL can do when Tenant fails to pay rent
At common law: sue for damages, but could only collect amount that was in arrears and COULD NOT terminate the lease

Modern Majority: LL can sue for damages AND TERMINATE the lease
Where tenant unjustifiably abandons, is LL under a duty to mitigate tenant's damages by releasing?
Common law: No

Modern Majority: Yes, LL must make a reasonable effort to relet property; if can get less than amount originally received from original tenant, tenant is liable for deficiency
What is the common law in the absence of recording act?
First in time, first in right
In a notice recording J, who is protected by the statute?
Notice statute protects a subsequent purchaser for value who takes without notice of the earlier conveyance.
In a race-notice recording J, who is protected by statute?
A race-notice statute protects all subsequent grantees who are bona fide purchasers for value who:
1. take w/out notice and
2. are the first to record
Where recording statute contains "without notice," what type of a J is it?
Notice or Race-Notice
Where the recording statute contains "in good faith" what type of a J is it?
Notice or Race-Notice
1. Where the recording statute contains "without notice" or "in good faith" AND "recorded first" or "first recorded" what type of a J is it?

2. What if "recorded first" and "first recorded" not in there?
1. Race-Notice

2. Notice
Where the statute does NOT include the word "notice" or "in good faith", what type of a J is it?
Race
What type of recording statute?

"A conveyance of an estate in land shall not be valid against any subsequent purchaser for value without notice thereof unless the conveyance is first record."
Notice
Which type of Recording J

"Any conveyance of an estate in land other than a lease for less than one year shall not be valid against any subsequent purchaser in good faith for value whose conveyance is first record."
race-notice
What kind of recording statute is it?

"A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded."
race
can one who purports to take property as an heir, donee, or devisee be a BFP?

Why?

So?
No.

b/c did not out-of-pocket anything

So they cannot prevail over the claim of an earlier grantee
What is the exception to heirs, devisees and donees not being able to be a BFP?
Shelter Rule Exception:

anyone (even heirs, donees, or devisees) can shelter under the rights of a BFP.
Cheating method to do Rule Against Perpetuities
1. the last person mentioned by proper name and all prior parties take
2. the next subsequent person not mentioned by proper name takes
3. all add’l parties lose and the property reverts back to grantor or grantor’s heirs
What is the one instance in which non-assignment clauses are valid?
concerning leases (invalid for all other K's)
What can a conveyance for property never do?
Place a restraint on alienation

But rights of first refusal are valid
for all crazy conveyances, check to make sure ___.
if it is on the deed.

If not --> not enforceable.
Does the buyer or the seller incur the risk of loss where a transfer of land is preceded by a K for sale?
Risk of loss is imposed upon the buyer.
Where a buyer must still pay on a K where the land has been destroyed prior to closing, what will the court order?
Specific performance for payment of the balancedue on the K
What must a right of first refusal do in order to avoid being invalid?
To place a time and person limitation on who can exercise the right, in order to avoid invalidity under RAP. Example, "Astro during his life if he wants to sell the property must offer it to O's heirs and assigns."
what warranties are included in special warranties?
1. prior to th time of execution of the conveyance, grantor has not conveyed th esame estae or any interest therein to any person other than grantee
2. that the estate conveyed is free from encumbrances made by the grantor
what does a due on sale clause do in a mortgage? Is it valid?
allows the lender to demand full payment of the loand if the mortgagor transfers an interest in the property w/out the lender's consent

yes, it's valid
When a buyer agrees to "assume payment of" a mortgage, who can the bank come after to pay a deficiency in the mortgage?

Can the bank collect from above person(s) even if a subsequent owner of the land has not assumed the mortgage?
The original holder of the mortgage (here, the seller) AND the person who assumed payment of the mortgage (the buyer here)

Yes, the bank can collect from these people even if someone else now owns the land.
Where a landowner enters into a modificaiton agreement with the senior mortgagee that makes the mortgage more burdensome, the junior mortgage...
will be given priority ove rthe modification.
Where a tenant assigns and the assignee fails to payment rent, the assignor is liable to the LL for rent IF there is ______ or _____.
privity of estate

privity of K
When is a tenant and LL in privity of estate?
When it's a present LL and present tenant (i.e. if you live on the LL's land --> privity of estate)
where is there privity of K in LL-tenant law?
ONLY where there is an agreement b/w the LL and the particualr tenant from whom the LL seeks to recover rent
Does the LL have a duty to the tenant (or tenant's invitees) for injuries sustained on the premises during the period of the lease?

Exceptions?
No

Exceptions:
1. latent defect
2. short term lease of a furnished dwelling (up to 3 months)
3. common passageways under LL's control
4. negligent repairs undertaken by LL
5. public use exception
What is the latent defect exception to LL liability?
= defect that T does not konw of and a reasonable person in T's position would not discover

- LL has duty to disclose, but needn't repair
What is the LL's liability for short term leases of furnished dwellings?
- LL liable for defects, even if LL neither knows nor has reason to know of such defects
What is LL's duty of care for common passageways under LL's control?
reasonable care.
what are the requirements for public use exception to LL's liability?
1. LL must know (or should konw) of MAJOR DEFECTS
2. LL must know (or should konw) that tenant will not fix defect
3. LL must know (or should know) that PUBLIC will be USING premises
Is tenant liable for injury to third party?
Yes, tenant is ALWAYS liable to a third party invitee for negligent failure to correct dangerous conditions
Analysis for determining if fixtures can be removed by sellers or tenants
Intent!
1. Is there express intent in an agreement b/w parties?
2. If no agreement, four factors
a. degree of attachment
b. general custom
c. degree of harm to premises on removal (where no harm --> no intent for item to be fixture)
d. trade fixtures NEVER fixtures (chattels or or items of personal property used in trade or business).
When must an item be removed if it is a fixture?

For tenant

For seller
For tenant: b/f tenant vacates at end of lease

For seller: before closing
Does an easement need to be in writing to avoid SOF? How?
Yes!

1. Must be in writing
2. signed by holder of servient estate
3. satisfy all deed formalities
What is the name for an easement that directly benefits the use and enjoyment of a specific parcel of land?
easement appurtenant
What is the name of the burdened property in an easement appurtenant? The benefitted property?
servient estate

dominant estate
What's the easement called when there's no dominant estate?
easement in gross
What are the two ways in which an express easement can be created?
1. express GRANT of an easement by someone else
2. express RESERVATION of an easement when land is sold to another person
Requirements for an implied easement by a common grantor
A previous use by a common owner and this previous use must be

Continuous
Apparent
Reasonably necessary
Limitations to implied easement for absolute right of access?
owner of the servient estate can choose the location of the easement, so long as the choice is a reasonable one
How to establish an easement by presecription
1. use must be ADVERSE to the true owner (just that there's no right)
2. use must be CONTINUOUS and UNINTERRUPTED and LAST for specified stat. period (20 yrs)
3. use is VISIBLE and NOTORIOUS OR with OWNER'S KNOWLEDGE
4. use is w/out owner's permission (oral permission is enough to destroy hostility)
For an easment to binding on subsequent holders of servient estates, subsequent holder must have _____. This can be by _____, ____, or _____.
notice

ACTUAL konwledge or notice
CONSTRUCTIVE notice (chain of title)
INQUIRY notice - inspection of land or public records of direct chain of title
How to terminate an easement?
1. doctrine of merger
2. deed of release
3. abandonment of action (not mere-non-use)
4. termination by estoppel
5. termination by prescription
6. termination by easements created by necessity (automatic)
is there an implied easement for view and sunlight?
NO!
what are the requirements for adverse possession?
H-E-L-U-V-A

1. Hostile: x has no right to be there
2. Exclusive: x must be excluding others from possessing the land
3. Lasting: for the stattutory period (default 20 years)
4. Uninterruptted: kind of continuous use that an ORDINARY owner of the property would make
5. Visible: x's use and possession is open and notoriuos
6. Actual: x must actually possess the land
What are the two exceptions to the requirement of "Actual" possession for adverse possession?
1. Constructive Adverse possession

2. leased land... to a third party constitutes possession
what are the requirements for constructive adverse possession?
1. the amount of land actually possessed must bear a reasonable relation to the whole

2. the property must be UNITARY (seemless)
what is constructive adverse possession?
The doctrine that extends the actual possession out to the full extent of the color of title under which the adverse possessor makes his claim of right to the property
When does part performance excuse adherance to the statute of frauds for an oral K?
1. the oral contract must be certain must be clear and certain, AND
2. the acts of part performance must clearly show the existence of a K; where buyer takes possession of property AND
a. buyer paid full or almost full purchase price
b. buyer built improvements on proprety
c. something else showing a K
What must a written property transfer K have to avoid violating the statute of frauds?
1. description of the property
2. name of the parties
3. price
4. signed by the one being sued
What is implied for every sale of land?
Implied warranty of marketability.

Every landslae K contains an implied promise that the seller will deliver marketable title to the buyer at the end of escrow.
What is marketable title?
title that a reasonably prudent buyer would accept, so minor defects do not matter
How does a seller satsify the implied warranty of marketable title?
1. proof of the title (tangible evidence of title)
2. Title free of ENCUMBRANCES: no easements, no restrictive covenants, no mortgages, no options, othe rthan those that have been previously disclosed to buyer
3. valid legal title on the day of closing
What are the buyer's remedies for seller's failure to deliver marketable title?
1. recission
2. damages
3. specific performance - coupled with a reduction in puchase price to reflect defect
Does the implied warranty of marketability end?
yes, it dissolves when the K of conveyance is completed at the closing.
What is a restrictive covenant and an equitable servitude?
a written promise, usually contained in the deed, that gives the holder interest the right to restrict some 3rd party in the use of his/her land
1. When is a license created?

2. When does it become irrevocable?
1. where an easement is attempted but fails b/c of SoF

2. if money is spent on the property in furtherance of an oral license --> irrevocable
What is implied in all profits?
an implied easement to go on the land to remove the natural resource
What rules apply to profits?
easement rules
What are the requirements to enforce a restrictive covenant at Law?
1. Intent: paries must intend that restriction run w/the land
2. Notice
a. actual
b. constructive - duly recorded in buyer's direct chain of title
c. inquiry
3. touch and concern the land - if the performance of the covenant makes the land more valuable or more useful, the covenant --> satisfied; includes covenants not to compete
4. Privity
a. to enforce the burden (successor in interest is the D): Verticle and Horizontal
b. to enforce the benefit (successor in interest is the P): Only Verticle
What is vertical privity?
those who subsequently obtain the property subject to the covenant;

For proving the burden of the covenant, these successors must take the FULL ESTATE held by predecessor

For proving the BENEFIT of the covenant, need only be a holder of any succeeding possessory estate
What is horizontal privity?
the original parties to the promise; these two parties must share some interest in the land INDEPENDENT of the covenant;
For the MBE, there must be a CONVEYANCE of the property b/w the original parties
Can a violation of a zoning ordinance render a title unmarketable?
Only by an existing violation
Which of the following is an encumbrance on a title?

Violation of subdivision, housing, or building code?
None
What is a vested remainder subject to total divestment"?
- remainder: an interest that comes immediately and naturally after termination of the preceeding estate

Vested: It is not subject to a condition precedent and the beneficiaries are ascertainable

Open: subject to diminution by creation of more people in the class

Subject to total divestment: the possession is subject to being defeated by the happening of a condition subsequent
When does a house have a warranty of quality and fitness?
When it is sold by the builder.
Is an easement by implication subject to the SoF?
No, b/c it's created by operation of law, not K
A deed is not effective to transfer an interest in realty unless it has been ____ and there must be _____ by ____ to complete the conveyance.
delivered

acceptance

grantee
How can a power company install power lines on a property where the owner doesn't give his permission for the power company to do so?
the power of eminent domain
when can a life tenant substantially alter or even demolish existing buildings on an propoerty?
when
1. no market value of the future interest is diminshed AND either

2a. the remainderman does not object OR

2b. a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness
Easements are valid against subsequent purchasers of the servient estate so long as _______.
the easement is recorded.
a remainder created in the interest of B's unborn children following a A's life estate must be what kind of an interest?
contingent remainder b/c don't know if B will have children (where specified that B doesn't have kids)
duties of tenant
1. pay rent
2. maintain premises; implied duty not to commit waste
3.
if lease includes tenant's covenant to repair, is the tenant liable for everything, including ordinary wear and tear?
Common law: no

Modern majority: yes, unless parties agreement states otherwise
What can LL do where tenant fails to pay rent?
Common law: sue for damages, but could only collect amount in arrears; could NOT terminate lease

Modern / Majority: LL can sue for damages and TERMINATE lease, thereby evicting Tenant
What are the duties of the LL?
1. duty to deliver possession of the leased premises; otherwise breach of lease
2. implied warranty of fitness or habitability: requires LL to provide leased premises that are reasonably suited for res. use
a. common law: none
b. modern rule: yes for residential property
3. Implied covenant of quiet enjoyment (every lease)
What can tenant do when LL breaches implied warranty of habitability?
1. MOVE OUT and END THE LEASE (no more rent)

OR

2. STAY and SUE for damages
How can LL breach the implied covenant of quiet enjoyment?
1. TOTAL eviction

2. PARTIAL eviction: LL excludes tenant from only some portion of leased property

3. Constructive eviction
What is the remedy for partial eviction?
Where LL excludes T: T gets to stay and stay for free

Where some 3rd party, who holds paramount title, retakes property and excludes T from that portion: rent is proportionally reduced to reflect amount taken
What is constructive eviction?

What are its requirements?
Definition: LL fails to provide some service that the LL is obligated to provide AND that failure makes property uninhabitable.

Reqs:
1. LL's failure to provide some service, not some 3rd party's failure.
2. Must be a SUBSTANTIAL INTERFERENCE w/tenant's quiet enjoyment of property
3. Tenant must ABANDON w/in resaonable time